[Senate Hearing 113-852]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 113-852
                            RELATIONS BOARD



                                 OF THE

                          LABOR, AND PENSIONS

                          UNITED STATES SENATE


                             SECOND SESSION


                            RELATIONS BOARD


                           SEPTEMBER 9, 2014


 Printed for the use of the Committee on Health, Education, Labor, and Pensions

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                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland            LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington                 MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont             RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania       JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina             RAND PAUL, Kentucky
AL FRANKEN, Minnesota                    ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado              PAT ROBERTS, Kansas
TAMMY BALDWIN, Wisconsin                 MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut       TIM SCOTT, South Carolina


                      Derek Miller, Staff Director

        Lauren McFerran, Deputy Staff Director and Chief Counsel

               David P. Cleary, Republican Staff Director



                            C O N T E N T S



                       TUESDAY, SEPTEMBER 9, 2014


                           Committee Members

Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, opening statement...................................     2
Murphy, Hon. Christopher, a U.S. Senator from the State of 
  Connecticut....................................................     9
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    10
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    12
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina.    14
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    16
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................    18


Block, Sharon, nominee for Member, National Labor Relations 
  Board, Washington, DC..........................................     4

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Response to questions of Senator Alexander, Senator Isakson, 
      and Senator Scott by Sharon Block..........................    22



                            RELATIONS BOARD


                       TUESDAY, SEPTEMBER 9, 2014

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in room 
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
chairman of the committee, presiding.
    Present: Senators Harkin, Alexander, Casey, Whitehouse, 
Murphy, Warren, Isakson, Hatch, and Scott.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    We are holding this hearing today because at the end of the 
year, there will be a vacancy at the National Labor Relations 
Board resulting from the departure of Member Nancy Schiffer. I 
would like to take a moment first to thank Ms. Schiffer for her 
service. The President has nominated an exceptionally well 
qualified and dedicated public servant, Ms. Sharon Block, to 
fill the opening, and I look forward to her speedy 
    A little over a year ago, for the first time in over a 
decade, we were able to confirm a fully functional five-member 
NLRB. It is my hope that by promptly confirming Ms. Block's 
nomination to fill the looming vacancy we can continue the 
progress that has been made and begin a new era where orderly 
transitions are the norm, not the exception.
    The NLRB is an agency that is absolutely critical to our 
country, to our economy, and to our middle class. Over 75 years 
ago, Congress enacted the National Labor Relations Act 
guaranteeing American workers the right to form and join a 
union and bargain for a better life. For both union and non-
union workers alike, the Act provides essential protections. It 
gives workers a voice in the workplace, allowing them to join 
together and speak up for fair wages, good benefits, and safe 
working conditions. These rights ensure that the people who do 
the real work in this country see the benefits when our economy 
    The National Labor Relations Board is the guardian of these 
fundamental rights. Workers themselves cannot enforce the NLRA. 
The Board is the only place workers can go if they have been 
treated unfairly or denied the basic protections that the law 
provides. In the past 10 years, the NLRB has secured 
opportunities for reinstatement for 22,544 employees who were 
unjustly fired. It has also recovered more than $1 billion on 
behalf of workers whose rights were violated.
    The Board doesn't just protect the rights of workers and 
unions. It also provides relief and remedies to our Nation's 
employers. The Board is an employer's only recourse if, for 
example, a union commences a wildcat strike or refuses to 
bargain in good faith during negotiations.
    The NLRB also helps numerous businesses resolve disputes 
efficiently. By preventing labor disputes that could disrupt 
our economy, the work that the Board does is vital to every 
worker and every business across the Nation.
    During our last NLRB hearing, one of the nominees described 
himself as being not pro-worker or pro-union or pro-employer, 
but instead he said he was pro-Act, pro-NLRA. I believe any 
nominee that comes before this committee should be pro-Act, and 
I am confident that Ms. Block, with her labor and employment 
law expertise, her expertise of having worked on this committee 
and on the Board, will be such a person. Two of the qualities 
that have always impressed me about Ms. Block are her 
commitment to public service and her ability and willingness to 
work with Democrats, Republicans, or whomever as long as they 
are committed to upholding and enforcing our Nation's labor and 
employment laws.
    Much has been made by some of my colleagues about Ms. 
Block's previous service at the Board as a recess appointee. 
During that period, I watched as she courageously fulfilled the 
duties she had sworn to carry out as a member of the Board, 
even in the face of constant political interference and even 
some personal attacks. Those criticisms and attacks were unfair 
then and they are unfair now.
    Ms. Block conducted herself appropriately at all times 
during her previous service and instead of attacks, she 
deserves our appreciation because without her service, the 
Board would have lacked a functioning quorum and would have had 
to shut down. We would be hard pressed to find a more qualified 
nominee than Sharon Block.
    Keeping the NLRB fully staffed and able to do its work will 
send a strong message to the American people that yes, 
Washington can work, and our government can function. It will 
give certainty to businesses and assure workers that someone is 
looking out for their rights and ready and able to enforce our 
Nation's labor laws. I look forward to hearing Ms. Block's 
testimony today and to moving her nomination expeditiously 
through this committee and through the Senate.
    I'll turn now to Senator Alexander.

                 Opening Statement of Senator Alexander

    Senator Alexander. Thanks, Senator Harkin.
    Ms. Block, welcome. It's good to see you.
    As we meet here today, the National Labor Relations Board 
has hundreds of decisions that it must re-decide, 436 decisions 
made between January 2012 and July 2013 that were made invalid 
by the U.S. Supreme Court's unanimous ruling this summer. This 
enormous load of cases to re-decide is no surprise to me, and 
it shouldn't be a surprise to anybody.
    In December 2011, 47 Republican Senators sent a letter to 
the President urging him not to go around Congress with his 
appointments to the NLRB. The President ignored our request and 
appointed Ms. Block along with two other individuals to the 
NLRB in January 2012. He wasn't just ignoring our opinion. The 
President ignored the Constitution. He used the recess 
appointment power at a time when the Senate wasn't in recess. 
That's not just my opinion. It's a fact.
    The D.C. Circuit said the appointments, including Ms. 
Block's, were unconstitutional. The Fourth Circuit Court of 
Appeals weighed in and said the recess appointment of Ms. Block 
violated the Constitution. This summer, the Supreme Court 
unanimously said it was unconstitutional. The only people who 
seem not to realize that were the President and the nominees 
themselves, including Ms. Block. Her appointment, along with 
Richard Griffin, is why the NLRB has before it today 436 
decisions that must be re-decided.
    This has created a lot of wasted time and money, a great 
deal of extra work, confusion for workers, confusion for 
employers, who count on the Board to properly and fairly 
adjudicate their disputes. The Board's own website says it has 
a, ``daily impact on the way America's companies, industries, 
and unions conduct business.''
    The process for re-deciding the cases will extend the legal 
expenses and uncertainty for hundreds of employees, employers, 
and unions who are party to the case. Instead of being able to 
focus on strengthening and growing a business, these folks are 
trapped in NLRB limbo.
    Ms. Block is here today to be considered to serve on the 
Board, this time proposed in the constitutional way. She has 
been nominated for a term that would begin in December, a 
little over 3 months from now. The President has submitted her 
nomination with adequate opportunity for Congress to consider 
that nomination. That's a good start. But I'm concerned that 
the American businesses and workers who count on the NLRB for 
stability are being asked to rely on the judgment of someone 
who chose instead to create confusion and instability.
    Ms. Block served on this Board under an unconstitutional 
recess appointment. She stayed in that position 18 months. She 
participated in hundreds of decisions. I said then that her 
actions revealed a troubling lack of respect for the 
Constitution's separation of powers and the Senate's 
constitutional role to advise and consent.
    Putting that aside, I am concerned, too, that in her time 
on the Board, Ms. Block has demonstrated a willingness to tilt 
the playing field toward organized labor. I'll have some 
questions about that when my time comes. This nominee would not 
be the first to tilt the playing field of the NLRB one way or 
the other. The NLRB has, in my opinion, become more partisan in 
recent decades. Policy reversals and dramatic shifts are 
becoming regular expectations with each new administration.
    So I intend, with Senator McConnell of Kentucky, next week 
to introduce legislation to restore the National Labor 
Relations Board to its intended role of acting as an umpire and 
applying the law fairly and impartially instead of acting as an 
advocate for one side over the other. That's how important I 
think the Board is and how important I think it is that it be a 
stabilizing force.
    Ms. Block, I thank you for being here. I look forward to 
hearing your thoughts and having a chance to ask some 
    The Chairman. Thank you, Senator Alexander.
    We welcome you, Ms. Block, and for purposes of 
introduction, I'll yield to Senator Murphy.
    Senator Murphy. Thank you, Mr. Chairman, and thank you, 
Senator Alexander, for holding this hearing. I'm proud to be 
back again to introduce a dedicated public servant from 
Westport, CT, whose parents made the trip down from Connecticut 
to see their daughter's nomination considered by this 
    I've had the pleasure of getting to know Ms. Block during 
her previous confirmation process but also through her work as 
a senior counselor to Secretary Perez at the Department of 
Labor where she worked very hard on getting long-term 
unemployed Americans back to work and helping at-risk youth 
develop the job skills necessary to succeed in today's economy. 
We thank her for her great work there.
    Many on this committee, of course, will remember Ms. Block 
from her time as the senior labor and employment counsel for 
this committee under Chairman Kennedy. She did a lot of good 
work there, but, most notably, helped pass a crucial piece of 
legislation that will ensure fairness in the workplace and pay 
equity for women, the Lilly Ledbetter Fair Pay Act.
    As you know, Mr. Chairman, the NLRB is the most important 
safeguard for both employees and employers that we have today. 
I'm glad that we're considering such a fair and diligent member 
to serve on the NLRB. Ms. Block has served with integrity as a 
Board member since January 2012, where at her last confirmation 
hearing, even many of my Republican colleagues who opposed her 
nomination noted her long career in public service and her 
stellar qualifications to be an NLRB Board member.
    We welcome you back to the committee and look forward to 
your testimony.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Murphy.
    Welcome again, Ms. Block, back to the place where you--I 
think you almost started here, if I'm not mistaken, on this 
committee. Your statement will be made a part of the record in 
its entirety. Please proceed as you so desire.


    Ms. Block. Thank you so much, Chairman Harkin, Senator 
Alexander, Senator Murphy, members of the committee. I am 
honored and humbled to appear before you again as a nominee for 
the National Labor Relations Board.
    The Board, for the first time in a decade, is operating 
under regular order with five confirmed members and only one 
vacancy on the horizon. As a result, the Board has a chance to 
undergo an orderly transition from one Board to the next, 
without the uncertainty and disruption that comes with multiple 
Board member vacancies that in the recent past have extended 
for long periods of time and threatened the existence of a 
quorum. This allows the Board members and their staffs to 
concentrate on doing the public's work.
    I have spent the largest part of my career as a career 
civil servant with the Board. I started my career in private 
practice representing management in employment cases at Steptoe 
and Johnson, but I came to the Board when my career was still 
in its formative stage. I had the privilege to serve Boards in 
both Democratic and Republican administrations.
    My service as a career attorney culminated with my position 
on the staff of former Republican Chairman Bob Battista. When I 
served as senior counsel to Chairman Battista, I always 
appreciated the frank case discussions and respect he showed 
the dedicated career attorneys on his staff. As a former career 
attorney, I would never underestimate the value of the 
expertise of the Agency's exceptional career staff.
    As Senator Harkin suggested, since the last time I appeared 
before you, the Supreme Court has issued its decision in Noel 
Canning. Although my expertise is in labor law, not 
constitutional law, as a lawyer, I assure you I have an 
unwavering respect for our judicial process in resolving 
difficult legal issues like those involved in that case. So I 
have a keen appreciation of the process that brought us to this 
point and the utmost gratitude for the opportunity to sit 
before you again today as a nominee.
    I am also grateful to this committee and the Senate for 
confirming a full Board. As someone who has spent the better 
part of my career at the Board, I can unreservedly say that it 
was a good day for the Board when Nancy Schiffer and Kent 
Hirozawa began the process that culminated in their 
confirmation with Chairman Pearce and Members Johnson and 
    I am especially grateful to Member Schiffer who came out of 
retirement to answer the call to public service and who has so 
ably led the staff that I had had the honor to work with. 
Anyone who cares about the Board and the efficient functioning 
of government on either the labor or management side of the 
Board's cases must agree that a fully confirmed, five-member 
Board is the ideal, as the statute prescribes.
    If fortunate enough to be confirmed for a seat on the 
Board, I would bring with me passion for the kinds of cases 
that make up the heart of the Board's docket, the cases where 
the parties have no interest in making law or grabbing 
headlines. In such cases the Board, as a neutral adjudicator, 
brings resolution to parties who just want to have their voices 
heard and their views fairly considered. Throughout my 
different tenures at the Board, these are the cases that have 
dominated the Board's docket and which I have found the most 
    The reality of my time on the Board, as with most Board 
members, is that the majority of cases that I participated in 
were unanimous decisions that applied longstanding precedent. 
They are the cases where we make a difference in people's lives 
by getting them their jobs back after they have been unlawfully 
discharged or facilitating the bargaining process by allowing 
companies to move forward running their businesses when a 
genuine impasse in negotiations has been reached. I remain 
dedicated to moving these cases as fairly and efficiently as 
    I would also bring with me lessons learned in this room 
during my tenure on the committee's staff. When I was here last 
year, I shared the important lessons that I learned from 
participating in this committee's work on the MINER Act. This 
committee continues a strong tradition of working across party 
lines to pass significant bipartisan legislation. The 
committee's great accomplishments are examples that I would 
carry with me to the Board of what good work for the American 
people can be achieved when we work amicably across the aisle.
    In closing, I would like to thank Secretary Perez for 
having given me the opportunity over the past year to continue 
to serve the public in this administration. He is a remarkable 
leader from whom I have learned so much.
    And I would like to thank my family that is here with me 
for all their love and support during the ups and downs since 
they last sat in those seats. Since I was here last year, my 
children have graduated from high school. So my son, Eli, who 
started at Oberlin College just a few weeks ago, is not here 
today. But my daughter, Charlotte, who will be starting at 
University of Chicago in a couple of weeks, is here, with my 
husband, Kevin, my parents, Lois and Joseph Block, my uncle, 
Michael Fuchs, and my aunt, Froma Sandler.
    Thank you for the opportunity to offer these remarks. I 
welcome your questions.
    The Chairman. Thank you very much. I'm sorry about the 
sound system. I don't know what's going on here, but I think 
it's a little bit better now.
    First of all, we welcome you and all your family members 
who are here. Welcome to the Senate and the Senate Committee on 
Health, Education, Labor, and Pensions.
    We'll start a round of 5-minute questions.
    First of all, Ms. Block, some of my colleagues, in my 
opinion, I believe, have unfairly criticized your previous 
service as a member of the Board. If anything, I believe that 
they should be praising your commitment to public service.
    I know the last few years have been a bit of an ordeal for 
you and your family with multiple nominations, public 
criticism, a lot of uncertainty, all of which was due to 
factors entirely beyond your control. You have done nothing but 
answer a call to public service and do your best to do your 
duty, and I commend you for your continued willingness to serve 
after all that you've been through.
    You mentioned your previous service at the Board and the 
Supreme Court's decision in Noel Canning in your opening 
statement. I'd like to give you the opportunity to share with 
the committee the thinking that went into your decision to 
continue to serve when the President's recess appointment 
authority was challenged in Federal court. I'm also interested 
in learning more about your decision to continue to issue case 
decisions at that time. If you could respond to that and tell 
us about your thinking at that time, I would appreciate it.
    Ms. Block. Thank you, Senator. Thank you for the question 
and I appreciate the opportunity to continue this conversation 
that we started last summer on this issue. If I start at the 
beginning, I was asked whether I was willing to be nominated, 
and I was honored to be asked, and I made a commitment in 
accepting the opportunity to be nominated. I made a commitment 
to serve, and I took that commitment very seriously.
    When I got to the Board, I then took an oath to serve to 
the best of my ability. And, again, I took that oath very 
seriously. I made my commitment and took that oath in the 
context of understanding that obligations under the National 
Labor Relations Act aren't suspended during disputes over 
composition of the Board.
    While I was aware, of course, of the disputes over the 
Board's composition during my service, I was also aware of the 
system in place to resolve those kinds of disputes. I have a 
deep respect for the judiciary and that process by which the 
Federal courts resolve constitutional questions subject, 
obviously, ultimately to Supreme Court review.
    During my tenure, the Supreme Court had not made that 
ultimate decision. As you noted, the decision came just this 
past summer. But the process of review moving toward the 
Supreme Court's resolution was ongoing. When the D.C. Circuit 
issued its decision in Noel Canning, again, that process 
continued. The solicitor general filed a Petition for 
Certiorari. The court granted that petition. So we knew we were 
moving toward the ultimate resolution of the question. That was 
true during the entirety of my service.
    When I looked at the importance to me of the oath that I 
had taken to serve and to serve to the best of my ability, the 
fact that I knew that the process was underway to ultimately 
resolve the issue, I thought the best way to honor that oath 
was to continue to serve and to ensure that that process that 
the Constitution prescribed for resolving constitutional 
questions was in place and would move toward that resolution.
    The Chairman. And isn't it true at that time that there was 
a split in the different circuits on this issue?
    Ms. Block. In fact, as the D.C. Circuit noted in its 
decision in Noel Canning that there had been, to the extent 
that the issues raised in that case had been addressed at all 
by other circuits--that there was a split in the reasoning in 
those cases.
    The Chairman. So here you are. You're on the Board. The 
D.C. Circuit issues one opinion. There are opinions in other 
circuits that contradict that, and, of course, those are the 
times when, hopefully, the Supreme Court then takes it up and 
resolves those differences, which it did, but not until this 
    So let me understand this. While you took an oath of office 
to serve and to fulfill your oath, your service was not 
circumvented by just the D.C. Circuit, because you've got to 
look to another circuit for just the opposite result. 
Therefore, it seems to me that in those cases, you have an 
obligation. Any public servant has an obligation to continue to 
serve and to fulfill their oath of office until such time as 
this is resolved by the Supreme Court.
    That's why I have said that I think it has been unfair for 
people to say that you should have resigned simply because of 
one circuit, or you can't issue decisions. The wheels of 
government and other entities go on regardless of whether one 
court says this--there's always a final adjudication, whether 
it's an appeal process in civil or criminal courts, and until 
that final adjudication is made, people are not denied their 
right or their obligation to fulfill their contractual 
agreements or their, in this case, oaths of office.
    That's why I've always felt that it was just not fair to 
criticize you for fulfilling what was your oath of office in 
the face of two disparate rulings by circuit courts. Now, 
today, obviously, that's different because the Supreme Court 
has made the decision on that.
    Thank you, Ms. Block.
    Senator Alexander.
    Senator Alexander. Ms. Block, during an organizing 
campaign, the current law requires employers to provide union 
organizers with a list of employee names and home addresses. 
This is called the Excelsior List. For example, in Chattanooga, 
TN, we have an ongoing organizing effort at the Volkswagen 
plant. In a secret ballot election last February, the majority 
of employees rejected the United Auto Workers bid to unionize 
the plant. The vote was 712 to 626.
    The NLRB is in the middle of a regulatory effort to expand 
the requirement that more information about these employees be 
given to the organizing union. They are proposing including the 
telephone number of the employee, the email address, the 
employee's work location, the shifts, the job classifications. 
It seems like everything but attaching a GPS to the employee.
    So my question is if you were one of the 712 Volkswagen 
employees who voted no, that you didn't want to organize the 
union at the Chattanooga plant, would you want your boss to 
hand over to the union your email address to the union 
    Ms. Block. Senator, thank you for the question. I think 
what you are alluding to is the proposed rule that's currently 
pending with the Board that does address this issue over 
information that needs to be provided. As you mentioned, it's 
now currently----
    Senator Alexander. No. What I'm asking is if you were one 
of those who voted no, you didn't want the union to organize, 
would you want the NLRB to order your email address turned over 
to the union organizers?
    Ms. Block. My understanding of the way that the process 
works is that, as you pointed out, the information now, which 
is name and home address, is turned over prior to the election 
when, presumably, employees are in the position of making a 
decision about how they want to vote in the election.
    Senator Alexander. And the proposal is to expand that, but 
I'm asking would you want your work location, your shift, your 
job classification, all that information to be turned over to 
the union organizers prior to the election?
    Ms. Block. My understanding is that that is part of the 
proposal that's currently pending before the Board, a proposal 
that was made after I left the Board. I don't think it's 
appropriate for me to voice an opinion on what the law should 
be or whether that particular provision should be----
    Senator Alexander. I'm not asking what the law should be. 
I'm just asking whether you think, if you were an employee, you 
would like to have all that information turned over.
    Ms. Block. I think a lot of people know that information 
about employees. I'm trying to be appropriate about the kinds 
of positions when there's been issue--the answer to that 
question necessarily implicates an issue that there is a 
possibility if I'm fortunate enough to be confirmed that I 
would have to consider. I do understand, although I wasn't on 
the Board when the latest proposed rule was----
    Senator Alexander. So you don't want to say whether you 
would like to have all that information turned over to the 
union organizer if you were an employee.
    Ms. Block. I just think it's more appropriate to be sure 
that were I to return to the Board that I have the benefit of 
an open mind in deliberations with my colleagues about that.
    Senator Alexander. Would you at least insist that if this 
rule goes forward that employees have an opportunity to opt out 
of this? If an employee says, ``Look, I want some privacy. I 
don't want to be bothered at home. They already have my name 
and home address, but I don't want them to have my telephone 
number, my email, my work location, my shift, my job 
classification. I'd like to opt out of that,'' do you think 
that would be a reasonable right for an employee to have?
    Ms. Block. Although I haven't been privy to the comments 
that have been submitted pursuant to the current proposal, I 
would imagine that issue is addressed in the comments. And if I 
have the opportunity to be at the Board and be in a position to 
consider that issue and consider comments raised, I can assure 
you I would take those comments very seriously as part of the 
deliberative process, consider the reasons why a commenter made 
that argument, and deliberate with my colleagues about the best 
way to address the concerns raised or the suggestions made in 
the comments.
    Senator Alexander. Thank you, Mr. Chairman.
    The Chairman. Thank you. In order, I have Senator Murphy, 
Senator Hatch, Senator Casey, Senator Scott, Senator Isakson.
    Senator Murphy.

                      Statement of Senator Murphy

    Senator Murphy. Thank you very much.
    Good to see you again, Ms. Block.
    Thank you, Mr. Chairman, for having this hearing.
    One thing I always struggle to understand are two very 
different numbers that exist in the workforce today. Polls 
consistently show that about 53 percent of workers want to be 
part of a union to be able to negotiate for better working 
conditions, and yet only 7 percent of workers are represented.
    Maybe part of the explanation for that is that there's at 
least one study out there that shows that amongst workers who 
have openly advocated for a union during an election campaign, 
over a period of time after they advocated for the union, one 
out of five of those workers ended up getting fired. Another is 
that the process of going through the election has gotten 
longer and longer in part because of litigation that gets 
introduced and disputes that get sent to the NLRB in the middle 
of the election process.
    I wanted to ask a question about the NLRB regulations that 
have started to make a little bit more sense of the election 
process. They've been criticized as requiring quickie elections 
where--and, as I understand it, this is really about saying to 
both employers and employees that if you have disputes, let's 
litigate those after the elections rather than hold up the 
    I wanted to just ask you a very general question about how 
you see the implementation of that new set of rules going and 
then whether you think that there are additional steps that 
need to be taken in order to make sure that that election 
happens in a timeframe that is fair, not advantageous to 
employers or employees, but that gets the job done with enough 
time in order for both sides to make their case, but not so 
much time that it becomes a barrier to the majority of workers 
who, I would argue, are interested in having a discussion about 
    Ms. Block. Thank you for the question, Senator. I have to 
start at the same place where I left off with Senator 
Alexander. To the extent that the proposal is still pending 
before the Board--and, again, it was a proposal that was 
promulgated after I left the Board--if I was fortunate enough 
to come back, I would certainly take very seriously the 
opportunity to review the record, and to the extent that there 
are comments in the record that present that point of view or 
the point of view that Senator Alexander offered, I would take 
those comments very seriously, but also to deliberate with my 
colleagues who were on the Board at the time that the proposal 
was made to understand the thinking behind the proposal and to 
hear all of the Board members' views on what they believe the 
objective of the rulemaking was and participate in that 
deliberative process to come to a conclusion.
    Senator Murphy. Thank you. I'm going to have mercy, given 
the state of your microphone.
    Mr. Chairman, I would add that the oath that we all take to 
serve is a very serious one, and Ms. Block took that oath. 
Notwithstanding the controversy in the courts, she was still 
bound by the oath that she took to carry out her duties as a 
member of the NLRB and to carry out the administration of the 
laws of the United States. I'm glad that she took that oath 
seriously enough to make sure that she served her country, as 
she has during her entire career, even while there was a 
legitimate controversy pending before our Federal court system.
    I thank you again, Ms. Block, for your perseverance in 
pursuit of justice for employers and employees and your 
willingness to come back and serve again despite often the 
personal nature of this controversy over the last several 
years, and I look forward to supporting your nomination.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Murphy.
    Senator Hatch.

                       Statement of Senator Hatch

    Senator Hatch. Thank you, Mr. Chairman.
    Ms. Block, welcome to the committee that you know well. As 
you know, there are scores of NLRB decisions that have to be 
reconsidered after the Supreme Court's decision in Noel 
Canning, including many decisions in which you've participated. 
Obviously, there is some question as to your ability to be 
impartial as the Board reconsiders these cases. That being the 
case, would you be willing to recuse yourself from 
participating again in those same cases where you participated 
before that the court has found improper?
    Ms. Block. Thank you for the question, Senator. I can 
assure you that if I was fortunate enough to come back to the 
Board and a party was to make a request that I recuse myself 
from a case, I would, of course, take that request very 
seriously, whether the basis of it was my prior service on the 
Board in a case impacted by Noel Canning or for any other 
reason. And I would certainly consult with the agency's ethics 
officials to determine--to look at those arguments made and to 
determine whether recusal was necessary or not. I can assure 
you that I would do that.
    More generally, though, in thinking about approaching cases 
that could come back that I had acted on before in my prior 
service, I can certainly pledge that if a recusal motion was 
not made, I think even in that respect, I have an obligation to 
assure the committee and my colleagues that I would keep an 
open mind regarding the decision.
    One big factor that would be different in looking at a case 
that came back to the Board than the first time is the 
deliberations with my colleagues, which I did find during my 
prior service to be a very important part of the process of 
making a decision. And, obviously, I would have different 
colleagues at the Board today, and I happen to have the 
privilege of knowing all four continuing Board members, some of 
them because I served with them, like Chairman Pearce, and some 
I don't know as well. But I know all of them well enough to 
know that I have a great deal of respect for their experience, 
and I would have a great deal of respect for their opinions in 
that deliberative.
    Senator Hatch. Ms. Block, I want to ask you about a 
particular case you decided when you were on the Board the 
first time, which was held in abeyance by the D.C. Circuit 
pending the Supreme Court's decision in Noel Canning. The 
decision I'm referring to was in the Fresenius case.
    To refresh your memory, that case involved allegations of 
sexual harassment where a pro-union employee scrawled sexually 
obscene, threatening, and harassing statements on union 
literature left in a common area in the workplace directed at 
women whom he believed might vote to decertify the union. 
Naturally, the women employees felt threatened, and they asked 
their employer to undertake a sexual harassment investigation, 
as the employer was required to do under Title VII of the Civil 
Rights Act.
    When the culprit was questioned by management, he lied and 
denied any involvement. However, later he called a number which 
he believed belonged to his union business agent and blurted 
out a confession that he was responsible. The only problem was 
that he had mistakenly called the company's human resources 
department. And when they identified that they were not the 
union but the employer's HR department, the culprit denied his 
own identity. He was subsequently terminated for lying.
    The NLRB, however, ruled that since his conduct occurred 
during the union decertification program or campaign, he was 
engaging in protected concerted activity and that his 
termination violated Section (8)(a)(3) of the National Labor 
Relations Act and that he should be reinstated. To me, the 
reasoning behind this decision is mind boggling. It puts the 
employer in a dilemma of having to choose between violating 
Section 8 of the NLRA as you saw it and Title VII of the Civil 
Rights Act regarding prompt investigation of sexual harassment 
allegations where EEOC guidelines require truthfulness in the 
investigation and prompt remedial action.
    In your opinion, in these types of situations, which law 
should the employer be required to obey, the NLRA under the 
Board's reasoning in Fresenius or Title VII under the Civil 
Rights Act? Which law better protects employees?
    Ms. Block. Thank you for the question, Senator. Again, I 
want to be careful because, as you noted, the cases that I 
participated in before could come back to the Board if I'm 
fortunate enough to be confirmed, and I would have to look at 
them again, and I would want to keep the pledge that I just 
made, keeping an open mind. So discussing these issues outside 
of the particulars of Fresenius--because I do think, one, that 
decision speaks for itself certainly better than I can relate 
my reasoning to you sitting here now a year or so later.
    But, I think that what you touched on is a case of--it 
involves competing interests, the employer's legitimate 
interest in investigating what they perceive as misconduct in 
the workplace and the Board's obligation to protect employees 
who engage in concerted activities. So, again, without 
addressing the particulars in Fresenius, things that the Board 
will traditionally look at to balance those interests are 
whether the employer has tolerated that kind of behavior in the 
past, and the Board, on the particular issue of employees not 
being truthful about their protected activity--that's a Board 
doctrine that had existed for a long time, and the Board has 
found ways to balance those interests with employers' 
perception of their responsibilities under Title VII.
    These cases bring to the Board a need to look at the 
particular facts and circumstances, what's the history of how 
the employer has dealt with similar situations in the past, and 
to figure out how to make those two interests balance.
    Senator Hatch. Mr. Chairman, my time is up.
    The Chairman. Thank you, Senator Hatch.
    Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Mr. Chairman, thank you very much.
    Ms. Block, we're grateful you're here and grateful for your 
service. Just by way of a brief statement on the question of 
your remaining in the aftermath of a circuit court decision, I 
would argue that there are at least four reasons, either 
individually or conjunctively, that would warrant you staying.
    First, there was an outstanding matter that had not been 
resolved by the Supreme Court. Second, you did take an oath of 
office which is a grave, serious decision. Third, if you 
resigned and Mr. Griffin did as well, there would be no 
functioning quorum. And, fourth, there is precedent for a 
member remaining in the aftermath of an adverse circuit court 
decision. I would argue for all those reasons that your 
decision was appropriate.
    I wanted to talk to you about two issues. One is your 
previous experience and, two, more generally, public service. I 
think often we might need a little reminder around here about 
the origins of the National Labor Relations Act, the findings 
that undergirded the statute. I was reading from the findings 
today, and I'll read in pertinent part, because I think it 
bears repeating.
    One of the findings says as follows,

          ``Experience has proved that protection by law of the 
        right of employees to organize and bargain collectively 
        safeguards commerce from injury, impairment, or 
        interruption, and promotes the flow of commerce by 
        removing certain recognized sources of industrial 
        strife and unrest.''

Then it goes on to say a similar thing that relates to labor 
practices that would hurt the free flow of commerce.
    So you have the Act, the statute, focused on the question 
of the free flow of commerce and also the constitutional right 
to associate. That's what we're talking about here in terms of 
the Act that we're debating. I think sometimes the unfortunate 
reality is that some people in Washington don't agree with the 
Act. They might disagree with the interpretation of the Act or 
recent decisions, but some of them seem to have a real problem 
with the National Labor Relations Act itself. At least, that's 
my reading of some of the reaction.
    But I wanted to raise something with you. You said in your 
testimony--and I'm quoting it from the last page of the 
testimony--talking about, ``the important lessons I learned 
from participating in this committee's work on the MINER Act.'' 
And then you go on and talk about working across the aisle.
    I had a hearing as the chairman of a subcommittee, 
Employment and Workplace Safety, about the problem we're having 
with getting miners their benefits in a timely fashion. It's 
the ultimate manifestation of justice delayed is justice 
denied. So we had an important hearing here, one of the few 
hearings involving miners in a long, long time. But I wanted to 
ask you about your experience working on the committee in the 
context not just of that Act, but working across the aisle.
    Ms. Block. Thank you, Senator, for the question. It is a 
fond memory that I have of working on this committee, 
generally, for Senator Kennedy but also, in particular, having 
had the privilege to work with the committee on the MINER Act. 
I think it was an example of what this committee does best in 
terms of that great tradition of moving important bipartisan 
    There are a few sort of big lessons that I learned. The 
first is the value of considering the perspectives of all 
stakeholders. In the mining community, mining issues, as you 
all know, are interesting in that there are very defined 
stakeholders, and you just can't get anywhere not listening to 
all of the stakeholders and only engaging with one side, and I 
thought that was something that the committee did very well and 
    Also, the necessity of finding practical solutions. To have 
big grand ideas about things might sort of be fun, but when 
you're talking about what goes on in a mine, you have to be 
very practical. You have to really think it through. Is the 
solution that you're coming up with something that's actually 
going to work for those people who are going to be affected by 
what you do. That was a big part of what we struggled with, 
again, together to figure out whether these new requirements 
are going to make sense underground in a mine.
    And, finally, and I think maybe especially for my service 
on the Board, the most important lesson I learned was the 
virtue of principles compromise, which I think was a lesson 
that Senator Kennedy taught particularly well. But as I talked 
about when I was here last summer, I know from being privy to 
the negotiations that went on that neither side got everything 
they wanted in that bill.
    But it was important in light of the context in which the 
impetus for negotiating the bill--a terrible tragedy that 
revealed the fact that things needed to be better. It was just 
vitally important, and Senator Enzi, Senator Isakson, Senator 
Murray, and Senator Kennedy told us to get something done. And, 
again, it just would have been a tragedy to hold out for 
everything and not take the opportunity to get something done. 
So I think that virtue of principle compromise was really the 
most important lesson that I've learned and I've tried to take 
with me.
    Senator Casey. Thanks very much. Thanks for your commitment 
to public service.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Casey.
    Senator Scott.

                       Statement of Senator Scott

    Senator Scott. Thank you, Mr. Chairman.
    Ms. Block, thank you for being here with us this morning, 
and we've heard--not well, because we can't hardly hear you, 
but I'm sitting in a position where I can, at least, and I also 
know that you and I will probably, hopefully respectfully, 
disagree on a number of issues as we have in the past, and I 
have a feeling that we'll continue to disagree on those issues 
in the future.
    But I don't believe that it's the Act that we do not like. 
It's the lack of common sense that really seems to be a 
challenge from my perspective in looking for, as you said, the 
very practical solutions to some of the challenges that we face 
and seeing the NLRB as an arbiter, an unbiased, impartial 
    In reading your statement, one of the quotes I like is,

          ``Although my expertise is in labor law, not 
        constitutional law, as a lawyer, I have an unwavering 
        respect for our judicial process in resolving difficult 
        legal issues,'' like those involved in the case that 
        you are referring to.

And, certainly, we both know that the five-member Board is 
supposed to be a Board that is fair and unbiased. It seems to 
me that over the last several years, and certainly during the 
time that you were on the Board, it seems to have tilted in the 
direction of just being more of a pro-union Board as opposed to 
a fair, unbiased Board.
    I highlight the comments--referring to another case--made 
by U.S. District Judge Arthur Schwab in speaking about the NLRB 
subpoenas and the UPMC documents. He said,

          ``The court has never seen a document request or 
        subpoena of such a massive nature. The requests seek 
        highly confidential and proprietary information that 
        has little to do with the underlying labor dispute'' 
        and ``arguably moves the NLRB from its investigatory 
        function and enforcer of Federal labor law to serving 
        as the litigation arm of the union and a co-participant 
        in the ongoing organization effort of the union.''

    It appears to me that the sense that I've read from the 
judge is consistent with the direction in which I have great 
concerns about the NLRB heading. I'd love to hear your comments 
on how that will be different this time around if you're on the 
Board. And I will note just one example that really causes me 
to scratch my head--and I would pull my hair out, but as you 
can see, I've already done that serving in Congress--and that 
is the Karl Knauz Motors BMW case from 2012 where you all 
struck down a courtesy rule.
    Let me read that rule, because if we're looking for a very 
practical, common sense courtesy rule, here it is. It simply 

          ``Courtesy is the responsibility of every employee. 
        Everyone is expected to be courteous, polite, and 
        friendly to our customers, vendors, and suppliers, as 
        well as to their fellow employees. No one should be 
        disrespectful or use profanity or any other language 
        which injures the image or reputation of the 

The Board found this rule unlawful. I can't get my arms around 
that decision.
    Ms. Block. Senator, thank you for the question. I 
appreciate the opportunity to continue this conversation about 
this issue. I do want to be careful, though, because, as I said 
previously, to the extent that we discuss cases that I 
participated in before that could be before the Board again, if 
I were fortunate enough to be confirmed, I want to be careful 
not to offer opinions that would suggest that I didn't have an 
open mind if the parties chose to come back to the Board.
    But on this issue, in general, about courtesy rules, I 
certainly agree, and I hope that most people would agree that 
employers and employees have an interest in having a courteous, 
professional workplace with proper decorum. And I think, in 
general, these cases can be very fact specific, but they do 
present, again, as most cases that come before the Board do, or 
often do, competing interests.
    Employers certainly have a legitimate interest in being 
able to maintain that professionalism and decorum in the 
workplace. Employees have interest in being able to discuss 
their concerns about the workplace with each other and the 
public. So these cases, again, come down to trying to see how 
those competing interests work out. My memory of the Board's 
cases, though, is that the Board does try to draw a line to the 
extent that the rule deals strictly with professionalism and 
decorum, that those rules don't create that conflict.
    Senator Scott. Let me ask you just a quick question. I know 
my time is about done. Five minutes isn't what it used to be.
    The Board found this rule unlawful, contending that 
employees would reasonably believe that it prohibited 
statements of protest or criticism of the employer. My question 
is: Please help me understand how, pray tell, does that 
courtesy rule somehow infer that it would be inappropriate for 
folks to stand in opposition to something that they didn't 
believe in while the rule specifically and clearly states the 
desire for a professional environment where coarse language and 
respect for others was the only objective.
    Ms. Block. Again, I want to be careful about not commenting 
on the facts of that particular case.
    Senator Scott. How about just the thought process put into 
making the decision as it relates to why a courtesy rule is 
somehow not courteous?
    Ms. Block. Again, I think what the Board looks at is does 
the rule extend beyond simply requiring courtesy and 
professionalism in the workplace and instead extend to behavior 
that would be perceived by the employees as limiting their 
ability to speak frankly and honestly about their concerns 
about their terms and conditions of employment, and that's an 
area that's protected by the Act.
    Senator Scott. Let me just close my comments by suggesting 
that a courtesy rule asking the employees to be responsible 
with their conversation and respectful to one another and not 
to use profanity toward one another somehow doesn't seem to 
fall into the category that we are talking about today. I'll 
finally say that there are just a number of other indicators 
that give me reason to pause and be concerned for the lack of 
an equilibrium on the Board and during the time in which you 
served on that Board as well. Thank you very much.
    The Chairman. Thank you, Senator Scott.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Thank you, Mr. Chairman.
    I appreciate you mentioning the MINER Act because we worked 
on that together, and I think it's a good example of what's not 
true right now in terms of the labor management conundrums that 
we have in Washington. But in the MINER Act, Senator Kennedy 
and Senator Enzi operated under the 80-20 rule. They didn't 
rush to judgment, but they tried to find common ground on the 
    As it turned out, the unions were immediately blaming the 
management for shortcomings causing the explosion. Management 
was overly defensive of itself. The committee didn't rush to 
judgment. And as it turns out, after months of investigation, a 
lightening strike that hit an underground cable that had been 
abandoned was the cause of the explosion.
    The MINER Act, instead of rushing to judgment, ended up 
bringing about new standards in terms of re-breathers and 
equipment that would be available in the mine for the safety of 
miners, but didn't create an enemy out of management or an 
enemy out of labor. It approached the situation based on the 
problem at hand after it had all the facts.
    Use that as a preface to my first question, which I'm going 
to try and ask in a way that you can answer without prejudicing 
yourself on a future decision. Do you think the general counsel 
for the Department of Labor should opine on a decision with a 
similar decision pending before the NLRB, meaning should the 
general counsel make law themselves while a question before the 
NLRB is pending and not yet decided?
    Ms. Block. I'm sorry. I'm trying to follow that. The 
general counsel--are you saying at the Department of Labor or 
at the NLRB?
    Senator Isakson. At the NLRB.
    Ms. Block. Whether the NLRB general counsel should opine on 
an issue that will ultimately be before the Board?
    Senator Isakson. There's a similar case pending before the 
Board, and they go ahead and opine on another case before it 
gets to the Board, but it's the same question.
    Ms. Block. The general counsel, as a party before the 
Board, will always put forth their theory of the case. So in 
the way that the Board system works, I think that the general 
counsel always has to act first. I guess if your question is 
going more to whether to continue to subsequently pursue the 
same theory before the Board has had a chance to act on the 
question, again, that's, I guess, a strategic decision that the 
general counsel has to make. Until the Board resolves an issue, 
the general counsel obviously can't know whether those 
subsequent decisions will stand up or not.
    Senator Isakson. What I'm referring to, specifically--and I 
know you probably will take an out on this, and I respect that 
because of what may or may not happen. But the general counsel 
opined on a case involving McDonald's that the employees of a 
franchisee were equal employees of the master franchisor, 
meaning that a McDonald's franchise employee is also an 
employee of McDonald's Corporation, which is a joint employer 
relationship, which is a sea change in terms of the way that 
we've ever looked at franchise or franchisee and 
responsibility. At the time they made the McDonald's case 
ruling, the Browning-Ferris Industries case, a Pennsylvania 
company, is still before the NLRB on exactly the same question, 
a question that represents a sea change in the treatment of 
master franchisors and franchisees and will have a dramatic 
effect on business.
    I traveled the State the month of August going to most 
every major MSA in my State and a lot of smaller ones as well. 
In Columbus, GA, I ran into a franchisee of McDonald's 
Corporation that has 23 franchise stores. This opinion is going 
to threaten to put him out of business, raise the cost of his 
business to be a non-competitive environment, and all over a 
decision that was made by a general counsel in the absence of a 
final decision by the Board that's pending in another case 
which is the exact same question.
    So my point is when you prefaced your remarks earlier about 
referring to the MINER Act, if we would blow a time-out at the 
NLRB and look for the 80 percent common ground and look for all 
the facts before we do harm, we would be a whole lot better off 
in those relationships between management and labor.
    I think the problem we have in the country right now is a 
skewed attitude on management and labor. One side favors labor 
and one side favors management, and it's almost like a contest 
to see who can play ``gotcha'' first. So I'm not going to ask 
you to answer a question because that's a pending decision. But 
it's a very serious decision for the health and future of the 
American economy, and I hope that the Board will be very 
judicious in what they decide to do on that case.
    Thank you, Mr. Chairman.
    The Chairman. Senator Warren.

                      Statement of Senator Warren

    Senator Warren. Thank you, Mr. Chairman.
    Welcome, Ms. Block. It's good to have you here. You're 
being nominated to fill the Board seat that Nancy Schiffer will 
leave in December.
    Before I begin with my questions, I just want to take a 
minute to acknowledge Ms. Schiffer and thank her for her 
service. Her intelligence and dedication to the work of the 
NLRB has served our country well, and we are all grateful. I am 
pleased now that with Ms. Block, we will have a qualified 
nominee to take over and to keep up the good work.
    Ms. Block, I have heard some of my colleagues across the 
aisle attack you for accepting a recess appointment. However, 
over the past 35 years spanning three Democratic Presidents and 
three Republican Presidents, there have been 29 recess 
appointments to the NLRB, 16 Republican nominees and 13 
Democratic nominees.
    The President of the United States asked you to serve your 
country by joining the NLRB, and your first appointment was 
consistent with this long, bipartisan tradition of recess 
appointments. Later, when the D.C. District Court decision came 
out advancing a split among the courts, you and other members 
of the Board followed the longstanding NLRB policy and waited 
for the Supreme Court to resolve the conflict that existed 
among the courts.
    Can you explain why the NLRB has this policy of waiting for 
the Supreme Court to resolve disputed decisions reached by the 
circuit courts?
    Ms. Block. Thank you, Senator. I think it just comes from 
an understanding of how our Federal court system works. Again, 
Noel Canning was a constitutional issue, but the context in 
which I'm more familiar is just when the Board issues 
decisions, the Board issues those decisions for the country as 
a whole, not for particular geographic areas.
    And it can happen that there are splits in the circuits. 
The circuit courts sitting in different parts of the country 
can come to different conclusions. We know that the way our 
Federal court system works is whether it's an interpretation of 
the National Labor Relations Act, even more importantly when 
it's a constitutional question, the Supreme Court is the 
ultimate arbiter of those questions.
    Senator Warren. So in your particular case--but this is 
part of longstanding tradition with the NLRB--we waited for the 
resolution in the dispute among the circuits about what the 
appropriate rule was in this case on recess appointments, and 
when the Supreme Court spoke to it, then we knew what the law 
was. Is that a fair statement?
    Ms. Block. Yes, absolutely, and, obviously, I left the 
Board before the Supreme Court ruled. But, as I mentioned in 
answer to the first question that Chairman Harkin asked, it was 
important to me, and I did know that that process was moving 
forward throughout the entire tenure that I had on the Board, 
that after the Noel Canning decision came out from the D.C. 
Circuit, the solicitor general filed a petition for certiorari 
ensuring that the process toward resolution would continue to 
move in that direction.
    Senator Warren. Good. I just want to say thank you for your 
willingness to serve and thank you, in particular, for your 
willingness to serve at the NLRB so that we can have a Board 
that fairly represents the people of this country.
    I have one other question I'd like to ask you about, and 
that is about scheduling. Unpredictable and last-minute 
scheduling is a very serious problem for a lot of low-income 
and part-time workers. Many of these workers want a full time 
job with stable hours, but many jobs today, particularly in 
service and retail industries, are part-time, or if they are 
full time, they're often on shifting schedules.
    When work schedules are more stable and more predictable, 
families experience greater economic security and they're 
better able to plan for child care and for other family 
obligations. But I've met with employees who have been 
retaliated against solely for asking for more stable schedules, 
not demanding, just asking for some scheduling help to attend a 
college course or to manage child care obligations.
    So I am pleased to have joined Chairman Harkin in 
introducing the Schedules that Work Act. This is a bill that 
would guarantee that all employees could request certain 
scheduling free of retaliation. It would also discourage last-
minute scheduling while still giving employers flexibility to 
make changes based on their business needs.
    I understand that it is Congress' job to write the laws, 
and the NLRB's job to enforce the rules. But with scheduling 
practices as a growing area of concern, I wanted to ask you if 
the NLRB has been involved in settling disputes on scheduling 
issues, and if you might just help inform us a bit about this 
    Ms. Block. Thank you for the question. The Board has long 
been involved in these kinds of issues as a result of them 
being important to employees and employees joining collectively 
to ask their employers to address the issue.
    Clearly, scheduling is a critical aspect of an employee's 
terms and conditions of employment, and the National Labor 
Relations Act gives employees the right, either through a 
collective bargaining representative, if the employees choose 
that vehicle for expressing their collective action, or just 
through protected concerted activity to raise concerns about 
terms and conditions of employment. The Act does, in fact, give 
a way for employees to express those concerns, share them with 
employees in a manner that's protected.
    Senator Warren. Thank you very much. I understand that 
securing a predictable work schedule is one of the reasons that 
workers often decide to unionize. I hope to continue to work 
with Senator Harkin to advance our bill so that some 
flexibility and some sensibleness is appropriate and available 
to all workers in the case of trying to make reasonable 
    Thank you very much, Ms. Block. I'm looking forward to 
seeing you on the NLRB.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Warren.
    Before I yield to Senator Alexander, I want to kind of 
clear up something that I keep hearing come up, and that is I 
think there's a confusion in some minds about the general 
counsel of NLRB. Usually, when you hear of the general counsel 
to the Department of Agriculture or the general counsel to 
Veterans Affairs, you think of them as the advisers to that 
entity, that that's their lawyer.
    But that's not true under the NLRA. People have to 
understand that when you talk about the general counsel--maybe 
we have to have a different name for that person. That person 
is really sort of the prosecutor in some ways, and they take in 
the information on the cases that come to them, and they 
present the case to the Board.
    The NLRB general counsel is not an adviser to the NLRB. 
That's not their lawyer. That general counsel has a different 
obligation. I think there's some confusion about how that 
works. I heard the question by Senator Isakson and I think some 
others that indicate to me that the role of the general counsel 
in the NLRB is different than the role of general counsels to 
other departments and agencies in the Federal Government, very, 
very, very different under the law.
    With that, I'll yield to Senator Alexander.
    Senator Alexander. Thanks, Mr. Chairman. I only have one 
    Ms. Block, do you believe that Congress, when it wrote the 
National Labor Relations Act, intended that the quarterback at 
Vanderbilt University or the women's basketball player at Iowa 
State who is on scholarship be considered an employee of the 
    Ms. Block. Again, Senator, as that is an issue that I think 
is likely or may already be pending before the Board, I think 
it would not be appropriate for me at this time to give an 
opinion. I can assure you, though, that I will look carefully, 
if I'm fortunate enough to be at the Board, at the arguments 
made by the parties in addressing that issue.
    Senator Alexander. May I offer a statement by the Knight 
Commission? About 25 years ago, the Knight Commission organized 
a group of university presidents and others, including the 
president of the University of Tennessee--and I don't know who 
that was--but we considered very carefully all the issues of 
intercollegiate athletics. And the whole point of the 
recommendation of the Knight Commission was that presidents of 
the universities should step up and take the responsibility for 
the problems--and there always are some problems--with 
intercollegiate athletics.
    But this is what these presidents said, and they included 
some really terrific people--I mean, Father Hesburgh of Notre 
Dame, Bill Friday of the University of North Carolina--some of 
the finest leaders in higher education in the country.

          ``We reject the argument that the only realistic 
        solution of the problems of intercollegiate athletics--
        and there always have been some--is to drop the student 
        athlete concept, put athletes on the payroll, and 
        reduce or even eliminate their responsibilities as 

    The Knight Commission went on to say,

          ``Such a scheme has nothing to do with education, the 
        purpose for which colleges and universities exist. 
        Scholarship athletes are already paid in the most 
        meaningful way possible with a free education. The idea 
        of intercollegiate athletics is that the teams 
        represent their institutions as true members of the 
        student body, not as hired hands. Surely, American 
        higher education has the ability to devise a better 
        solution to the problems of intercollegiate athletics 
        than making professionals out of the players, which is 
        no solution at all, but rather an unacceptable 
        surrender to despair.''

    That was the Knight Commission on intercollegiate athletics 
25 years ago. I would hope very much that should you be a 
member of the National Labor Relations Board, you will take 
into account those opinions. Student athletes are not employees 
of a university. Student athletes--for example, universities 
are taking steps to deal with the various problems, which 
include the money that athletes may have to spend. Student 
athletes, like other students--about half of them if they're 
low-income--are eligible for a Pell grant in addition to their 
student scholarship.
    I was a student athlete without a scholarship at Vanderbilt 
University, and there are enormous advantages to the privilege 
of being a student athlete. So I would hope the NLRB would 
reject what I consider to be a fairly preposterous claim that 
Congress, when it talked about employees, had in mind student 
athletes. And I would respectfully suggest the 2-year 
deliberations of the Knight Commission to you and anyone else 
who might be a member of the National Labor Relations Board.
    Mr. Chairman, I have no other comments.
    The Chairman. Thank you very much, Senator Alexander.
    Ms. Block, thank you again for your appearance and for your 
forthright answers to our questions.
    The record will remain open for 10 days. If there are 
additional questions or questions by any Senators, I ask that 
those be submitted by this Friday before close of business here 
in the Senate.
    Again, thank you, Ms. Block. We look forward to getting 
your nomination before the Senate in due order so that we can 
continue after December with a full NLRB.
    With that, the committee will stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

   Response to Questions of Senator Alexander, Senator Isakson, and 
                     Senator Scott by Sharon Block

                           senator alexander
    Question 1. Do you think NLRB decisions that are de facto invalid 
by the Supreme Court's Noel Canning decision should be given priority 
over the Board's new cases or over finalizing the Board's other 
business, for example, the proposed representation-case procedures 
    Answer 1. I am aware that Chairman Pearce issued a statement 
following the decision affirming the Board's commitment to resolving 
any cases that may have been impacted by Noel Canning as expeditiously 
as possible. If I am fortunate enough to be confirmed, I would share my 
colleagues' commitment to resolve these cases as expeditiously as 
possible. I am not privy to the Board's intended process, so I am 
unable to comment on the specifics. As a Board member, I would make 
efficient case processing a priority.

    Question 2a. Do you think the Board should notify the parties to 
cases affected by Noel Canning that the Board's decisions have been 
invalidated? If yes, how would you propose doing so? If no, please 
explain why.
    Answer 2a. I believe that the Agency should be transparent in its 
operations. I am not privy to the Board's intended process for dealing 
with cases that may have been impacted by the Supreme Court's Noel 
Canning decision. However, following the Supreme Court decision in New 
Process Steel, I am aware that the Agency included a list of cases 
impacted by the decision on its public website. I believe that promoted 
transparency. If I am fortunate enough to be confirmed to the Board, I 
look forward to discussing with my colleagues additional steps that 
could be taken to promote transparency.

    Question 2b. Do you think those parties should have a time limit on 
how long they have to ask the Board to reconsider their case? Please 
explain your answer.
    Answer 2b. I am not privy to the Board's intended process. I do 
believe that some reasonable time limit may be appropriate to ensure 
that parties involved are assured a final resolution of their dispute.

    Question 3. Do you think the Board should inform the public, and in 
particular those parties impacted, about how it plans to process the 
cases invalidated by Noel Canning? If yes, how would you propose 
processing the cases? If no, please explain why.
    Answer 3. Again, I believe that the Agency should be transparent in 
its operations. I am not privy to the Board's intended process for 
dealing with cases that may have been impacted by the Supreme Court's 
Noel Canning decision. If I were fortunate enough to be confirmed to 
the Board, I would look forward to discussing with my colleagues an 
efficient, effective, and transparent process.

    Question 4. Do you think the Board should allow new briefs to be 
filed in the invalidated cases that are going to be reconsidered? 
Please explain why or why not.
    Answer 4. I am not privy to the Board's intended process for 
dealing with cases that may have been impacted by the Supreme Court's 
Noel Canning decision. However, I am aware that following the Supreme 
Court's decision in New Process Steel, the Board did not permit the 
filing of new briefs as to the matters that had been fully briefed 
during original consideration, but did permit parties to bring to the 
Board's attention any relevant new authority that issued since the time 
of the initial decision. I believe that was an appropriate process.

    Question 5. In how many of the 436 decisions that are de facto 
invalid by the Supreme Court's Noel Canning ruling did you participate?
    Answer 5. I did not keep a log of cases in which I participated, 
nor do I have the list of 436 decisions to which you refer; therefore, 
I do not know the number of those cases in which I participated. I 
would be happy to work with the National Labor Relations Board's 
Congressional Affairs staff to ensure that you receive this 

    Question 6a. The Board has been criticized for overturning 
longstanding precedent. What factors would you consider when deciding 
to follow or overturn a Board precedent?
    Answer 6a. I have a great deal of respect for the principle of 
stare decisis. Stability and certainty in the law are important values. 
But there are times when stability and certainty are better served by 
re-examining precedent. I believe that reversal of precedent should 
remain rare and should always reflect careful consideration. I believe 
that it is important to consider whether existing Board law lacks a 
clear and coherent rationale and/or where the Board has been directed 
by a Federal court to reconsider its approach to a particular legal 

    Question 6b. Do you believe that overturning the Board's 
longstanding precedent creates uncertainty and confusion for employers 
and employees?
    Answer 6b. I believe that predictability is an important value 
under the law and that reversals of precedent should remain rare and 
reflect careful consideration. Reversals of precedent must be 
understood in the context of the Supreme Court's observation that 
``[t]o hold that the Board's earlier decisions froze the development . 
. . of the national labor law would misconceive the nature of 
administrative decisionmaking,'' which the Court described as ``the 
constant process of trial and error.'' NLRB v. J. Weingarten, Inc., 420 
U.S. 251, 265-66 (1975).

    Question 6c. Do you agree that the purpose of the National Labor 
Relations Act is to create stability in labor relations?
    Answer 6c. I believe that the purpose of the National Labor 
Relations Act, as declared in the preamble to the Act, is to 
``eliminate the causes of certain substantial obstruction to the free 
flow of commerce and to mitigate and eliminate these obstructions when 
they have occurred by encouraging the practice and procedure of 
collective bargaining . . . ''

    Question 6d. How does overturning Board precedent help create such 
    Answer 6d. Again, I believe stability and certainty in the law are 
important values. But, there are times when stability and certainty are 
better served by re-examining precedent. I believe that reversal of 
precedent should remain rare and should always reflect careful 
consideration. I believe that it is important to consider whether 
existing Board law lacks a clear and coherent rationale and/or where 
the Board has been directed by a Federal court to reconsider its 
approach to a particular legal issue.

    Question 7a. In your opinion, how much weight and deference should 
be given to congressional intent? Should the Board members consider 
current policy concerns, or should they solely apply the law as 
Congress intended when deciding cases?
    Answer 7a. Board members should apply existing law, as articulated 
by Congress, impartially to all parties.

    Question 7b. When you previously served on the Board, did you weigh 
policy concerns when deciding cases, or did you strictly apply the law 
as Congress intended?
    Answer 7b. I took my role as a neutral adjudicator of the law very 
seriously. I strove to understand all sides of a case, to consider 
carefully the arguments of every party regarding how the law applies, 
and to render a fair decision based solely on the record evidence and 
the applicable legal principles.

    Question 8. At what point do you believe that a franchisor should 
be responsible for unfair labor practices by a franchisee?
    Answer 8. Cases involving joint employment are very fact-specific. 
This is a complicated area of the law and I would approach it with an 
open mind, and with a focus on the specific facts of the particular 
case. Because this is an issue that could come before the Board in a 
future case, it would not be appropriate for me to address this issue 
in substance.

    Question 9. If a franchisor is found to be a joint employer with 
its franchisees, do you think a union could demand to have collective 
bargaining agreements with both the franchisee owner, and the corporate 
    Answer 9. Again, if I am fortunate enough to be confirmed, this 
issue could come before the Board, so it would not be appropriate for 
me to address it in substance.

    Question 10. If the joint employer doctrine under the National 
Labor Relations Act is going to be changed, do you think it would 
result in more certainty for interested parties if Congress changed it 
or if the NLRB changed it?
    Answer 10. Because I cannot know the feelings of interested 
parties, I cannot speculate as to which course of action may result in 
more certainty for interested parties.

    Question 11a. In a book chapter you authored entitled, 
``Perspectives from a New Member of the NLRB,'' you opined, ``the web 
of rights that we have afforded workers in the country is not without 
serious flaws.'' What are the rights contained in the ``web'' you 
describe? And what specifically do you believe are the serious flaws in 
that ``web?''
    Answer 11a. I was referring to the various labor and employment 
laws Congress has enacted governing our Nation's workplaces. As 
discussed in the chapter, I believe that the lack of protection against 
workplace discrimination for members of the LGBT community is a serious 
flaw. I also mentioned that many of our worker protection statutes are 
outdated and outmoded.

    Question 11b. In the same chapter you asserted, ``we should not 
expect Congress to change or clarify the legal landscape for workers or 
employers any time too soon.'' If you do not expect Congress to change 
the legal landscape, do you believe that is an appropriate role for the 
    Answer 11b. I understand that as a Board member I would be charged 
with enforcing the law as it currently exists and not enacting changes 
that can only be accomplished by legislation.

    Question 12. Four Federal circuit courts have rejected the NLRB's 
decision in D.R. Horton, which held that class action waivers in an 
arbitration agreement violate the National Labor Relations Act. In the 
book chapter referenced above, you wrote, ``[i]t remains to be seen how 
D.R. Horton will fare in the courts . . ..'' Now that it is well-
documented that D.R. Horton fared poorly in the courts, do you believe 
it is appropriate for the Board to continue to apply it, especially if 
the Board does not plan to file cert with the Supreme Court?
    Answer 12. Because this is an issue that could likely come before 
the Board in a future case, it would not be appropriate for me to 
address this issue.

    Question 13. In the book chapter referenced above, you state, 
``misclassification is one of the most important labor and employment 
issues of our time,'' the ``Board . . . has a role to play'' in 
resolving this issue and ``the debate engaged [about independent 
contractor status] in St. Joseph is an important one for the current 
Board to continue.'' If confirmed, do you support the Board changing 
the factors it considers to determine employee versus independent 
contractor status?
    Answer 13. Because this is an issue that could likely come before 
the Board in a future case, it would not be appropriate for me to 
address this issue in substance.

    Question 14. In the book chapter referenced above, you appear to 
disagree with the Supreme Court's opinion in Hoffman Plastic Compounds, 
which, as you stated, ``held that the Board had no authority to award 
backpay to an undocumented worker who--violating immigration law--had 
presented fraudulent work-authorization documents to get his job.'' You 
argue this decision, from a policy perspective, has ``serious negative 
consequences.'' If confirmed, will you abide by the Supreme Court's 
precedent in Hoffman or look for ways to distinguish it from other 
cases before the Board that involve awarding undocumented workers 
    Answer 14. I have a great deal of respect for the judiciary and 
understand that the Supreme Court's decision in Hoffman Plastic 
Compounds is the law of the land.

    Question 15. During your confirmation hearing, you indicated there 
was conflicting reasoning in the Federal courts about whether your 
recess appointment was unconstitutional. Please name what Federal court 
found President Obama's January 4, 2013, recess appointment of you to 
the NLRB constitutional.
    Answer 15. The D.C. Circuit itself acknowledged in Noel Canning 
that its decision was at odds with the views expressed by the Second, 
Ninth, and Eleventh Circuit courts. I was referring to the reasoning 
employed by the courts, which was in conflict, not the ultimate holding 
of the courts.

    Question 16. The NLRB Office of Inspector General and congressional 
investigations have uncovered inappropriate ex parte communications 
between the Board and the Office of General Counsel in recent years. In 
your time on the Board, please describe how you took care to follow the 
Board's ex parte rules and how you plan to do so moving forward, 
especially in light of the fact that your former colleague on the 
Board, Richard Griffin, is now the General Counsel.
    Answer 16. I understand that the NLRB has a unique structure. 
Agency personnel serve as both prosecutor (the Office of the General 
Counsel) and adjudicator (the Board and the Division of Judges) of 
unfair labor practice cases. As a result, due process requires that 
there be a wall of separation between both sides of the Agency to 
ensure the separate and independent nature of these functions. I 
understand that the wall is intended to ensure that Agency employees on 
the General Counsel's staff who play a role in the investigation and 
prosecution of unfair labor practice cases do not discuss confidential 
case-related information with employees of the Board who are involved 
in the adjudicatory function. With respect to cases that are pending 
before the Board, this requirement is codified in Sections 102.126-
102.133 of the Board's Rules and Regulations (Subpart P--Ex Parte 
Communications), which prohibit all parties to a case from engaging in 
ex parte communications.
    I assure you that I fully understand the Agency's rules regarding 
ex parte communications and did make every effort to adhere to them 
during my prior service and would make every effort to adhere to the 
Agency's policies in all of my communications, if I am fortunate enough 
to be confirmed.

    Question 17. If confirmed, will you commit to cooperating with 
congressional oversight of the NLRB, including document requests, and 
to work with the NLRB Office of Inspector General and Government 
Accountability Office in any studies/investigations that they may 
    Answer 17. If confirmed, I would make every effort to cooperate 
with congressional oversight of the NLRB and to work with the NLRB 
Office of Inspector General and Government Accountability Office in any 
studies/investigations they may undertake.

    Question 18. If confirmed and you are asked to personally meet with 
Members of Congress or their staff, are you willing to do so?
    Answer 18. If confirmed, I would make every effort to, when 
requested, personally meet with Members of Congress or their staff.

    Question 19. Please describe in detail your role in preparing or 
approving responses to congressional inquiries during your time serving 
as Senior Counselor to Secretary of Labor, Thomas Perez. Have you ever 
advised against providing Congress with the information they requested? 
If yes, please describe the background of such requests and your 
reasoning for advising the Secretary to withhold the requested 
    Answer 19. The Department of Labor's Office of the Executive 
Secretariat, in coordination with the Office of Congressional and 
Intergovernmental Affairs, manages the process of responding to 
congressional inquiries. As a part of the standard Departmental 
clearance process, staff from a number of agencies--including the 
Office of the Secretary--are afforded the opportunity to review 
correspondence. The clearance process is designed to ensure that 
information provided to Members of Congress is both accurate and 
                            senator isakson
    Question 1. Recently, the NLRB's General Counsel issued an opinion 
that McDonalds's Corporation is responsible for the employees of their 
independently operated franchisees. This opinion changes decades of 
legal precedence harming the very essence of the American franchise 
business model--that is the independence of the franchisees to run 
their own business. I recently heard from my constituent, who owns 23 
franchised restaurants. He was petrified of what a joint employer 
ruling would do to the business he has grown from one store to 23 
stores. I have two questions: Do you think the General Counsel should 
be ``making'' law on his own prior to the Board decision on the 
Browning Ferris case? Do you understand the effects a joint employer 
relationship will have on independent franchisees--the loss of their 
business and any of their established equity? I think it is important 
to hear from you on what you believe a joint employer relationship is.
    Answer 1. Because this is an issue that could likely come before 
the Board in a future case, it would not be appropriate for me to 
address this issue in substance. I can say that this is a complicated 
area of the law and I would approach it with an open mind.

    Question 2. In the Specialty Healthcare decision, the NLRB reversed 
the long-standing precedent for establishing a traditional bargaining 
unit. This board decision now allows for labor organizations to cherry 
pick certain employees within a workplace in order to gain access to 
those places of work. This can obviously create conflict within the 
workplace amongst employees, impossible management hurdles for 
employers who could potentially have to deal with multiple collective 
bargaining contracts within the same workplace, and ultimately affect 
American consumers who benefit from the products and services from so 
many of these workplaces. Do you support this new ``same work, same 
facility'' test despite it not having been developed through any 
transparent rulemaking process?
    Answer 2. Because this is an issue that could likely come before 
the Board in a future case, it would not be appropriate for me to 
address this issue in substance. If I am fortunate enough to be 
confirmed to the Board, I will examine these issues with an open mind 
and carefully consider the facts of the case, the viewpoints of my 
colleagues, career Board staff and the parties, and apply the law in a 
fair and honest manner.
                             senator scott
    Question 1a. The Board under the current Administration has 
embarked on truly unprecedented rulemakings and issued a multitude of 
decisions that seem to be solutions in search of a problem. In your 
opinion, has the confluence of the decline of private-sector 
unionization to 6.7 percent and the defeat of card check prompted the 
NLRB to serve as the vehicle for mitigating these losses?
    Answer 1a. No.

    Question 1b. Is there an expectation on behalf of union 
organizations that the Board, particularly the Democrat members, should 
act in this way?
    Answer 1b. If I am fortunate enough to be confirmed to the Board, I 
can assure you that I will uphold my oath to administer the National 
Labor Relations Act in a fair and impartial manner, consistent with the 
requirements of the Act. I cannot speak to the expectations of others.

    Question 2a. Many of the decisions issued during your tenure on the 
Board noticeably tilt the playing field toward organized labor. Some of 
these include WKYC-TV, Gannet Co., Inc. (08-CA-039190); Alan Ritchey, 
Inc. (32-CA-018149); Hispanics United of Buffalo (03-CA-027872); Karl 
Knauz BMW (13-CA-046452); and Fresenius USA Manufacturing (02-CA-
    In the Knauz case, the Board found a commonsense courtesy rule to 
be unlawful. While the decision in this case does not ban courtesy 
rules, it clearly has far-reaching impacts. Do you stand by your 
decision in this case?
    Answer 2a. The decision in the Karl Knauz case speaks for itself. 
The Board found a handbook statement encouraging ``courteous, polite, 
and friendly'' behavior to be lawful. It found a statement that 
prohibited ``disrespectful'' conduct and ``language which injures the 
image or reputation'' of the employer to be unlawful because employees 
could reasonably think that those prohibitions would cover activity 
protected by the National Labor Relations Act.

    Question 2b. Please explain how an employee could perceive this 
courtesy rule as infringing on their rights.
    Answer 2b. Again, the Karl Knauz decision speaks for itself. The 
Board found a handbook statement encouraging ``courteous, polite, and 
friendly'' behavior to be lawful. It found a statement that prohibited 
``disrespectful'' conduct and ``language which injures the image or 
reputation'' of the employer to be unlawful because employees could 
reasonably think that those prohibitions would cover activity protected 
by the National Labor Relations Act.

    Question 3a. The Board's decision in Specialty Healthcare, along 
with subsequent cases that upend board precedent to allow the 
gerrymandering of bargaining units, will have major consequences on 
employees and employers.
    Why did the Board expand the Specialty Healthcare decision to 
industries beyond non-acute health facilities?
    Answer 3a. I was not on the Board when it issued its decision in 
Specialty Healthcare. I was not privy to the Board's reasoning other 
than what is in the decision itself.

    Question 3b. Commonsense says that the creation of ``micro-unions'' 
could lead to perpetual contract negotiations and strike threats as 
well as acrimony amongst employees. How is this good for our economy 
and labor relations?
    Answer 3b. The Board's obligation under Section 9 of the Act is to 
determine whether a petitioned-for unit is an appropriate unit. If I am 
fortunate enough to be confirmed, I would do my best to carry out this 
obligation in a fair and unbiased manner.

    Question 3c. Do you agree that micro-unions could restrict the 
cross-training of employees and thus career advancement?
    Answer 3c. The Board's obligation under Section 9 of the Act is to 
determine whether a petitioned-for unit is an appropriate unit. If I am 
fortunate enough to be confirmed, I would do my best to carry out this 
obligation in a fair and unbiased manner.

    Question 3d. How many decades of precedent were overturned in 
Specialty Healthcare?
    Answer 3d. Again, I was not on the Board when it issued its 
decision in Specialty Healthcare. In the Specialty Healthcare decision, 
the Board states that it ``return[ed] to the application of our 
traditional community of interest approach in this [nursing home] 
context'' and overruled Park Manor Care Center, a case decided in 1991.

    Question 3e. Would you deem as few as two employees as an 
appropriate bargaining unit in any circumstance? Please provide a yes 
or no response.
    Answer 3e. Yes, if a petitioned-for unit of two employees otherwise 
met the test for an appropriate bargaining unit, I would find such a 
unit appropriate, as the Board has throughout its history. See, e.g., 
Tennessee Valley Broadcasting Company, 73 NLRB 1509, 1510 (1947) (units 
of all regular staff announcers and all radio technicians--each 
composed of two employees--constitute two separate appropriate units).

    Question 4a. In 2012, you said that your driving motivations for 
being a labor lawyer would inform your thinking about cases and issues 
before the Board. Do you believe that your past work experiences and 
motivations will hamper your ability to be an unbiased arbiter should 
you return to the Board?
    Answer 4a. No.

    Question 4b. Do you believe that your previous record at the Board 
reflects that of a neutral arbiter?
    Answer 4b. Yes.

    Question 4c. U.S. District Judge Arthur Schwab recently remarked 
that the overly broad scope of requests from the Board in NLRB v. UPMC 
``arguably moves the NLRB from its investigatory function and enforcer 
of Federal labor law, to serving as the litigation arm of the Union, 
and a co-participant in the ongoing organization effort of the Union.'' 
In light of this assertion and similar findings by other courts, do you 
agree that the Board must act in a more impartial manner to avoid 
further damage to its reputation?
    Answer 4c. If I am fortunate enough to be confirmed, I would take 
my role as a neutral arbiter very seriously and would conduct myself in 
a fair and impartial manner. I believe that the current Board members 
share this commitment.

    Question 5a. For 30 years, under its joint-employer standard, the 
NLRB has taken the position that one business cannot be held liable for 
the unfair labor practices of another business unless that business had 
direct control over the employees in question. However, the NLRB is 
attempting to alter this long-standing standard, which will create 
immense uncertainty in the business community and further tilt the 
playing field in favor of big labor and their organizing efforts.
    In light of the General Counsel's recent decision to ignore this 
established standard and authorize McDonald's USA, LLC to be named as a 
joint employer, how do you think this classification of a franchisor as 
a joint employer will affect the economy and the general business 

    Answer 5a. Because this is an issue that could likely come before 
the Board in a future case, it would not be appropriate for me to 
address this issue in substance. I can say that this is a complicated 
area of the law and I would approach it with an open mind.

    Question 5b. Do you believe that this classification would be 
isolated solely to McDonald's, or would it impact a variety of 
businesses that use similar models, including real estate agencies, 
insurance companies, and car dealerships?
    Answer 5b. Again, this is an issue that could likely come before 
the Board in a future case, so it would not be appropriate for me to 
address this issue in substance.

    Question 5c. In your opinion, what impact would this joint employer 
classification have on union organizing efforts in industries like the 
fast food sector?
    Answer 5c. Again, this is an issue that could likely come before 
the Board in a future case, so it would not be appropriate for me to 
address this issue in substance.

    Question 5d. In August, the California Supreme Court ruled that 
Domino's Pizza LLC was not liable for alleged sexual harassment at one 
of its franchises because the company is not sufficiently involved in 
the hiring, firing, and supervision of employees to warrant liability. 
Do you think this decision and others will give the General Counsel's 
office pause?
    Answer 5d. I am not familiar with that decision.

    Question 5e. If confirmed and presented with this issue before the 
Board, would you lend credence to the courts' opinions on the joint 
employer standard?
    Answer 5e. If confirmed, I will take my role as neutral arbiter 
very seriously. I will work to understand all sides of a case, to 
consider carefully the arguments of every party, and to render a fair 
decision based solely on the record evidence and the applicable legal 

    Question 5f. Knowing that this issue is a priority of Administrator 
Weil's, do you have any preconceived notions on the joint employer 
issue due to your work at the Department of Labor?
    Answer 5f. I do not have preconceived notions with regards to the 
joint employment issue. Again, if I am fortunate enough to be 
confirmed, I will approach each case before me with an open mind.

    Question 5g. Have you assisted the Department in developing 
priorities or policies pertaining to this issue?
    Answer 5g. Staff from the Office of the Secretary is afforded the 
opportunity to review agency priorities and policies on a range of 
issues. I was one of many individuals at the Department of Labor who 
reviewed the Wage and Hour Division Administrator's Interpretation 
(2014-2) and fact sheet to help potential joint employers of home care 
workers determine their obligations under the Fair Labor Standards Act.

    [Whereupon, at 11:15 a.m., the hearing was adjourned.]